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'''American Government'''

{{inuse}}'''American Government'''

'''Second Lecture - BILL OF RIGHTS & FEDERALISM'''

'''Second Lecture - BILL OF RIGHTS & FEDERALISM'''

==Introduction==

==Introduction==

The [[Amendment]]s to the [[Constitution]] dominate current legal and [[politics|political]] controversies.  The [[Bill of Rights]] – [[Amendment]]s one through ten – and the Fourteenth [[Amendment]] have wrought enormous changes.  We explain the [[Bill of Rights]] now, and reach the Fourteenth [[Amendment]] in a future class.

The [[Amendment]]s to the [[Constitution]] dominate current legal and [[politics|political]] controversies.  The [[Bill of Rights]] – [[Amendment]]s one through [[powers of ten|ten]] – and the [[Fourteenth Amendment]] have wrought enormous changes.  We explain the [[Bill of Rights]] now, and reach the [[Fourteenth Amendment]] in a future class.

==[[Bill of Rights]]==

==[[Bill of Rights]]==

Opposition was so strong to the [[Constitution]] that its supporters had to promise a “[[Bill of Rights]].”  But ratification only required nine out of thirteen [[state]]s (Article VII), and that was attained when a convention in [[New Hampshire]] approved it (57-47) on June 21, 1788.  But the large [[state]]s of [[Virginia]] and [[New York]] had not yet joined the [[Union]], and the [[Anti-Federalists]] were strong in both [[state]]s.  These were the home [[state]]s of [[Madison]] and [[Hamilton]], respectively, the biggest supporters of the [[Constitution]].

Opposition was so strong to the [[Constitution]] that its supporters had to promise a “[[Bill of Rights]].”  But ratification only required nine out of thirteen [[state]]s (Article VII), and that was attained when a convention in [[New Hampshire]] approved it (57-47) on June 21, 1788.  But the large [[state]]s of [[Virginia]] and [[New York]] had not yet joined the [[Union]], and the [[Anti-Federalists]] were strong in both [[state]]s.  These were the home [[state]]s of [[Madison]] and [[Hamilton]], respectively, the biggest supporters of the [[Constitution]].

[[Virginia]] only ratified the [[Constitution]] by adding a [[Bill of Rights]] for 20 changes, and demanding 20 other changes too.  In [[New York]], defeat seemed likely until [[Hamilton]] cleverly procured a delay to await news from [[New Hampshire]] and [[Virginia]].  When news of their ratification reached [[New York]], sentiment moved in favor of the [[Constitution]] and it narrowly passed on July 26, 1788.  The vote was a very close 30-27.  Still, [[New York]] demanded another [[constitution]]al convention to add a [[Bill of Rights]].

[[Virginia]] only ratified the [[Constitution]] by adding a [[Bill of Rights]] for 20 changes, and demanding 20 other changes too.  In [[New York]], defeat seemed likely until [[Hamilton]] cleverly procured a delay to await news from [[New Hampshire]] and [[Virginia]].  When news of their ratification reached [[New York]], sentiment moved in favor of the [[Constitution]] and it narrowly passed on July 26, 1788.  The [[vote]] was a very close 30-27.  Still, [[New York]] demanded another [[constitution]]al convention to add a [[Bill of Rights]].

To avoid another [[constitution]]al convention, the first [[Congress]] passed 12 [[constitution]]al [[amendment]]s and sent them to the states for ratification.  The states ratified ten of them by the end of 1791, and they became known as the “[[Bill of Rights]]” because they protect the people against certain [[government]] interference.

To avoid another [[constitution]]al convention, the first [[Congress]] passed 12 [[constitution]]al [[amendment]]s and sent them to the [[state]]s for ratification.  The [[state]]s ratified [[powers of ten|ten]] of them by the end of 1791, and they became known as the “[[Bill of Rights]]” because they protect the [[people]] against certain [[government]] interference.

The [[Bill of Rights]] is very short: you could completely memorize them in a few days.  They are set forth on pages 330-31 of the textbook.  What they mean, however, could fill an entire library.

The [[Bill of Rights]] is very short: you could completely memorize them in a few [[day]]s.  They are set forth on pages 330-31 of the text[[book]].  What they mean, however, could fill an entire library.

The first two [[amendment]]s establish fundamental [[freedom]]s, including the right to keep and bear arms.  The third [[amendment]] prohibits placing troops in people’s homes in time of peace.  The fourth through eighth [[amendment]]s establish legal rights, particularly for the accused.  The ninth [[amendment]] is a vague protection of individual rights, and the tenth [[amendment]] protects [[state]] rights.

The first two [[amendment]]s establish fundamental [[freedom]]s, including the right to keep and bear [[small arms|arms]].  The [[third amendment]] prohibits placing troops in people’s homes in time of [[peace]].  The [[Fourth Amendment|fourth]] through [[Eighth Amendment|eighth amendment]]s establish legal [[rights]], particularly for the accused.  The [[Ninth Amendment|ninth amendment]] is a vague protection of individual [[rights]], and the [[Tenth Amendment|tenth amendment]] protects [[state]] [[rights]].

The [[First Amendment]] receives the most attention.  It prohibits [[Congress]] from infringing on [[Free Speech Clause|free speech]], [[press]], assembly, petition and [[religion]]; it also prohibits the establishment of [[religion]].  By implication, it protects [[freedom]] of association.  It expressly applies only to [[Congress]], but the [[court]]s have since applied it against all the [[state]]s too.

The [[First Amendment]] receives the most attention.  It prohibits [[Congress]] from infringing on [[Free [[speech]] Clause|free speech]], [[press]], assembly, petition and [[religion]]; it also prohibits the establishment of [[religion]].  By implication, it protects [[freedom]] of association.  It expressly applies only to [[Congress]], but the [[court]]s have since applied it against all the [[state]]s too.

In fact, virtually all of the [[Bill of Rights]] now protect citizens against all forms of [[government]]: federal, state or local.

In fact, virtually all of the [[Bill of Rights]] now protect [[citizens]] against all forms of [[government]]: [[federal]], [[state]] or local.

Let’s look at important sections of the [[Bill of Rights]]:

Let’s look at important sections of the [[Bill of Rights]]:

==The [[Free Speech Clause]].==

==The [[Free [[speech]] Clause]].==

The [[First Amendment]] protects the greatest of all [[constitution]]al rights: “[[Congress]] shall make no law ... abridging the freedom of speech.”  This protects religious and political speech.  It protects [[prayer]] in many circumstances; it also protects evangelizing.  It was unique to [[America]], reflecting the [[Great Awakening]] and preaching that permeated the [[colony|colonies]] in the 1700s.

The [[First Amendment]] protects the greatest of all [[constitution]]al [[rights]]: “[[Congress]] shall make no [[law]] ... abridging the [[freedom of speech]].”  This protects religious and political [[speech]].  It protects [[prayer]] in many circumstances; it also protects [[Evangelism�|evangelizing]].  It was unique to [[America]], reflecting the [[Great Awakening]] and preaching that permeated the [[colony|colonies]] in the 1700s.

Originally, “speech” would not have included as much as it does today.  Over the years, the [[Supreme Court]] has expanded what is protected as speech under the [[First Amendment]].

Originally, “[[speech]]” would not have included as much as it does today.  Over the [[year]]s, the [[Supreme Court]] has expanded what is protected as [[speech]] under the [[First Amendment]].

Now speech includes, for example, the burning of the [[America]]n [[flag]] ([[Texas v. Johnson]]).  It includes spending money on political campaigns.  It can include vulgar or obscene words.  It offers some protection even to commercial speech, such as certain advertisements.

Now [[speech]] includes, for example, the burning of the [[America]]n [[flag]] ([[Texas v. Johnson]]).  It includes spending [[money]] on [[politics|political]] campaigns.  It can include vulgar or obscene words.  It offers some protection even to [[commercial speech]], such as certain [[advertisement]]s.

When something qualifies as “[[Free Speech Clause|free speech]],” the protection against regulation of its content is nearly absolute.  Only a compelling interest by the [[government]] can justify infringing on such speech, and the regulation must be narrowly tailored for a necessary goal.

When something qualifies as “[[Free [[speech]] Clause|free speech]],” the protection against [[regulation]] of its content is nearly absolute.  Only a compelling interest by the [[government]] can justify infringing on such [[speech]], and the [[regulation]] must be narrowly tailored for a necessary goal.

One might ask, why isn’t all speech protected?  Why should the [[government]] be able to abridge any speech?  

One might ask, why isn’t all [[speech]] protected?  Why should the [[government]] be able to abridge any [[speech]]?  

It is easy to think of examples of speech that should not be free and protected.

It is easy to think of examples of [[speech]] that should not be free and protected.

Consider [[terrorism]].  Suppose an anonymous caller phones a hospital and says that there is a bomb there.  The hospital may have to evacuate as a precaution.  Operations would be immediately stopped, and the very sick would be moved with great difficulty.  Or imagine someone on an airplane standing up in mid-flight and announcing he’s a terrorist.  Passengers would panic and the airplane would be forced to land immediately.  There can be no [[constitution]]al protection for this type of speech.

Consider [[terrorism]].  Suppose an anonymous caller [[telephone|phones]] a [[hospital]] and says that there is a [[bomb]] there.  The [[hospital]] may have to evacuate as a precaution.  Operations would be immediately stopped, and the very sick would be moved with great difficulty.  Or imagine someone on an [[airplane]] standing up in mid-flight and announcing he’s a [[terrorist]].  Passengers would [[panic]] and the [[airplane]] would be forced to land immediately.  There can be no [[constitution]]al protection for this type of [[speech]].

Before airplanes and [[terrorism]], the classic example of unprotected speech is yelling “fire” in a crowded theater.  People would stampede for the exits, and some could be injured.

Before [[airplane]]s and [[terrorism]], the classic example of unprotected [[speech]] is yelling “[[fire]]” in a crowded [[theater]].  [[People]] would stampede for the exits, and some could be injured.

The [[Supreme Court]] has said that “fighting words” are not “[[Free Speech Clause|Free Speech]]” protected by the [[First Amendment]].  Other types of speech are also excluded from the [[First Amendment]].  But over time, the [[Court]] has redefined protected speech to be broader and broader, including even conduct like flag-burning and political campaign spending.

The [[Supreme Court]] has said that “fighting words” are not “[[Free [[speech]] Clause|Free Speech]]” protected by the [[First Amendment]].  Other types of [[speech]] are also excluded from the [[First Amendment]].  But over time, the [[Court]] has redefined protected [[speech]] to be broader and broader, including even conduct like [[flag]]-burning and [[politics|political]] campaign spending.

===B.  The Establishment Clause.===

===B.  The Establishment Clause.===

The [[First Amendment]] begins with: “[[Congress]] shall make no law respecting an establishment of [[religion]] ....”  Known as the “[[Establishment Clause]],” this is increasingly used against [[state]] and local [[government]].  In 1962, this clause was the basis for the [[Supreme Court]] to ban [[prayer]] in the [[school]]s (Engel v. Vitale).  It is the basis for the recent ban on the phrase “under God” in the [[Pledge of Allegiance]], and the order to remove the [[Ten Commandments]] plaque from the [[Alabama]] Supreme Court.

The [[First Amendment]] begins with: “[[Congress]] shall make no [[law]] respecting an establishment of [[religion]] ....”  Known as the “[[Establishment Clause]],” this is increasingly used against [[state]] and local [[government]].  In 1962, this clause was the basis for the [[Supreme Court]] to ban [[prayer]] in the [[school]]s (Engel v. Vitale).  It is the basis for the recent ban on the phrase “under [[God]]” in the [[Pledge of Allegiance]], and the order to remove [[the Ten Commandments]] plaque from the [[Alabama]] [[Supreme Court]].

The [[Establishment Clause]] is rooted in [[Thomas Jefferson]]’s [[Virginia]] Statute for Religious Freedom of 1786.  Its purpose was to prevent an elite class of clergy, funded by [[government]].  “The law for religious freedom, which made a part of this system, having put down the aristocracy of the clergy, ... restored to the citizen the freedom of the mind, and those of entails and descents nurturing an equality of condition among them.”  Letter by [[Thomas Jefferson|Jefferson]] to Adams, Monticello (Oct. 28, 1813).

The [[Establishment Clause]] is rooted in [[Thomas Jefferson]]’s [[Virginia]] [[Article of Religious Freedom

Neither [[Thomas Jefferson|Jefferson]] nor [[James Madison]] wanted an aristocratic [[clergy]] like in [[England]].  They opposed [[American]] imitation of the [[Church of England]].

|Statute for Religious Freedom]] of 1786.  Its purpose was to prevent an elite class of [[clergy]], funded by [[government]].  “The [[law]] for [[Article of Religious Freedom

|religious freedom]], which made a part of this system, having put down the [[aristocracy]] of the [[clergy]], ... restored to the citizen the freedom of the mind, and those of entails and descents nurturing an equality of condition among them.”  Letter by [[Thomas Jefferson|Jefferson]] to [[Adams]], [[Monticello]] (Oct. 28, 1813).

Neither [[Thomas Jefferson|Jefferson]] nor [[James Madison]] wanted an [[aristocracy|aristocratic]] [[clergy]] like in [[England]].  They opposed [[American]] imitation of the [[Church of England]].

[[Thomas Jefferson|Jefferson]] and [[Madison]] were hostile to nobility and primogeniture (the English rule that gave all inheritance to the oldest son).  The [[Constitution]] bans titles of nobility, as does the [[Articles of Confederation]].  [[Thomas Jefferson|Jefferson]] worked to abolish [[English]] rules of inheritance from [[Virginia]] law.

[[Thomas Jefferson|Jefferson]] and [[Madison]] were hostile to nobility and primogeniture (the English rule that gave all inheritance to the oldest son).  The [[Constitution]] bans titles of nobility, as does the [[Articles of Confederation]].  [[Thomas Jefferson|Jefferson]] worked to abolish [[English]] [[rule]]s of inheritance from [[Virginia]] [[law]].

Note that the [[Establishment Clause]] applied only to [[Congress]].  Read it again. “[[Congress]] shall make no law ....”

Note that the [[Establishment Clause]] applied only to [[Congress]].  Read it again. “[[Congress]] shall make no [[law]] ....”

After the [[Civil War]], some in [[Congress]] sought to extend the [[Establishment Clause]] against the [[state]]s.  That would have been pointless if it already applied against the states. The proposals substituted “[[state]]” for “[[Congress]]” in copying from the [[First Amendment]]: “No [[state]] shall make any [[law]] respecting an establishment of [[religion]] or prohibiting the free exercise thereof ....”  H.R. Res. I, 44th Cong., 1st Sess. (1875) (emphasis added). But the proposed [[amendment]] never passed.  

After the [[Civil War]], some in [[Congress]] sought to extend the [[Establishment Clause]] against the [[state]]s.  That would have been pointless if it already applied against the [[state]]s. The proposals substituted “[[state]]” for “[[Congress]]” in copying from the [[First Amendment]]: “No [[state]] shall make any [[law]] respecting an establishment of [[religion]] or prohibiting the free exercise thereof ....”  H.R. Res. I, 44th Cong., 1st Sess. (1875) (emphasis added). But the proposed [[amendment]] never passed.  

Eventually, someone hostile to [[religion]] in public life rose to power on the [[Supreme Court]].  Justice [[Hugo Black]], a former member of the [[Ku Klux Klan]], pushed the court to ostracize [[religion]] from [[school]]s and [[government]].  He wrote the opinion banning [[prayer]] from public [[school]]s, and other opinions ostracizing [[religion]]. Since then courts have banned the [[Ten Commandments]] and now even the [[Pledge of Allegiance]].

Eventually, someone hostile to [[religion]] in public [[life]] rose to [[power]] on the [[Supreme Court]].  Justice [[Hugo Black]], a former member of the [[Ku Klux Klan]], pushed the [[court]] to ostracize [[religion]] from [[school]]s and [[government]].  He wrote the opinion banning [[prayer]] from public [[school]]s, and other opinions ostracizing [[religion]]. Since then [[court]]s have banned [[the Ten Commandments]] and now even the [[Pledge of Allegiance]].

===C.  Protections for the Accused.===

===C.  Protections for the Accused.===

In colonial [[America]], those who favored independence were considered enemies of the King.  Some were prosecuted.  [[Peter Zenger]], for example, was prosecuted for published materials critical of the governor of [[New York]], who was appointed by the Crown.  Zenger was acquitted by an American jury in a famous case establishing the [[freedom]] of the [[press]].  But the [[jury]] had clearly saved him - had a [[judge]] tried the case, he would have surely been sent to jail.

In [[colony|colonial]] [[America]], those who favored [[independence]] were considered enemies of the [[King]].  Some were [[prosecute]]d.  [[Peter Zenger]], for example, was [[prosecute]]d for published materials critical of the [[governor]] of [[New York]], who was appointed by the Crown.  [[Peter Zenger|Zenger]] was acquitted by an [[American]] [[jury]] in a famous [[case]] establishing the [[freedom]] of the [[press]].  But the [[jury]] had clearly saved him - had a [[judge]] tried the [[case]], he would have surely been sent to [[prison|jail]].

The original [[Constitution]] included few protections for individual liberties, but it did guarantee the right to a [[jury]] trial.  Art. III, Section 2.  The Founders were sure to include that.  To this day, 95% of jury trials held in the entire world are in the [[United States]].

The original [[Constitution]] included few protections for individual [[liberty|liberties]], but it did guarantee the [[rights|right]] to a [[jury]] trial.  [[Article III|Art. III, Section 2]].  The [[Founding Fathers|Founders]] were sure to include that.  To this day, 95% of [[jury]] [[trial]]s held in the entire [[world]] are in the [[United States]].

This protection was not enough for colonists still mindful of the [[British]] prosecutions.  The bulk of the [[Bill of Rights]] added many additional safeguards against abusive prosecutions by [[government]].

This protection was not enough for [[colony|colonists]] still mindful of the [[British]] prosecutions.  The bulk of the [[Bill of Rights]] added many additional [[safeguard]]s against abusive [[prosecute|prosecutions]] by [[government]].

The [[Fourth Amendment]] protects citizens against unreasonable searches of their homes and personal belongings. Warrants signed by a neutral [[judge]] or [[magistrate]] are required.  The [[Supreme Court]] imposed the “Exclusionary Rule” to prohibit use of unlawfully obtained material at the trial of the accused.

The [[Fourth Amendment]] protects [[citizens]] against un[[reason]]able searches of their homes and personal belongings. [[Search warrant|Warrants]] signed by a neutral [[judge]] or [[magistrate]] are required.  The [[Supreme Court]] imposed the “[[Exclusionary Rule]]” to prohibit use of unlawfully obtained material at the [[trial]] of the accused.

The [[Fifth Amendment]] allows an accused to avoid testifying in his own case, and gives him the right to counsel. The [[Supreme Court]] later required [[government]] to read Miranda warnings to any accused held in custody before interrogating him.

The [[Fifth Amendment]] allows an accused to avoid [[testify]]ing in his own [[case]], and gives him the [[rights|right]] to [[counsel]]. The [[Supreme Court]] later required [[government]] to read [[Miranda warning]]s to any accused held in custody before interrogating him.

The [[Sixth Amendment]] established the right to counsel, and the [[Supreme Court]] later forced states to pay for an attorney when the defendant cannot afford it.  It also establishes the right to an “impartial” [[jury]] in the district where the crime allegedly occurred, and a right to a speedy and public [[trial]].  This expands on the right to jury trial in the original [[Constitution]].

The [[Sixth Amendment]] established the [[rights|right]] to [[counsel]], and the [[Supreme Court]] later forced [[state]]s to pay for an [[attorney]] when the [[defendant]] cannot afford it.  It also establishes the [[rights|right]] to an “impartial” [[jury]] in the district where the crime allegedly occurred, and a right to a speedy and public [[trial]].  This expands on the right to [[jury]] [[trial]] in the original [[Constitution]].

The [[Seventh Amendment]] establishes a right to [[jury]] [[trial]] in civil (non-criminal) cases involving more than $20 (which isn’t much today, due to inflation!).

The [[Seventh Amendment]] establishes a [[rights|right]] to [[jury]] [[trial]] in [[civil]] (non-[[criminal]]) [[case]]s involving more than [[dollar|$]]20 (which isn’t much today, due to [[inflation]]!).

The [[Eighth Amendment]] prohibits excessive [[bail]] requirements, which is what an accused must post to be released from jail before trial.  It also prohibits excessive fines or [[Cruel and Unusual Punishment]].

The [[Eighth Amendment]] prohibits excessive [[bail]] requirements, which is what an accused must post to be released from [[prison|jail]] before [[trial]].  It also prohibits excessive fines or [[Cruel and Unusual Punishment]].

The Seventh of the [[Ten Commandments]] says “Neither shall you bear false witness against your neighbor.”  [[Deuteronomy]] 5:20.  That prohibits false accusations, and false testimony in court.  If everyone obeyed this commandment, then many of the above protections would not be needed.

The Seventh of the [[Ten Commandments]] says “Neither shall you bear [[false witness]] against your neighbor.”  [[Deuteronomy]] 5:20.  That prohibits false accusations, and false [[testimony]] in court.  If everyone obeyed this [[commandment]], then many of the above protections would not be needed.

In fact, false accusations were a problem in colonial [[America]] as they are today.  Colonists feared the power of the new [[government]] being used to intimidate witnesses into testifying falsely, and imprisoning critics of [[government]].  During the presidency of [[John Adams]], a few of his opponents were fined and even imprisoned under the [[Sedition Act]] for criticizing the [[president]].

In fact, false accusations were a problem in [[colony|colonial]] [[America]] as they are today.  [[Colony|Colonists]] feared the [[power]] of the new [[government]] being used to intimidate [[witness]]es into [[testify]]ing falsely, and im[[prison]]ing critics of [[government]].  During the [[president|presidency]] of [[John Adams]], a few of his opponents were fined and even im[[prison]]ed under the [[Sedition Act]] for criticizing the [[president]].

The [[Sixth Amendment]] contains perhaps the greatest safeguard of all against false accusation: the right “to be confronted with the [[witness]]es against him.”  This includes the right of cross-examination, by which an accused person's [[attorney]] can question the [[government]] [[witness]]es in open court.  Statements made outside of court can be excluded in criminal trials if the defendant lacks an opportunity to cross-examine the person who made the statement.  “I heard someone say he saw defendant rob the bank” isn’t going to be allowed, unless that someone is cross-examined in open court.

The [[Sixth Amendment]] contains perhaps the greatest [[safeguard]] of all against false accusation: the [[rights|right]] “to be confronted with the [[witness]]es against him.”  This includes the right of [[cross-examination]], by which an accused person's [[attorney]] can question the [[government]] [[witness]]es in open court.  [[Statement]]s made outside of [[court]] can be excluded in criminal [[trial]]s if the [[defendant]] lacks an opportunity to [[cross-examination|cross-examine]] the person who made the [[statement]].  “I heard someone say he saw [[defendant]] rob the [[bank]]” isn’t going to be allowed, unless that someone is [[cross-examination|cross-examined]] in open [[court]].

Many feel that these amendments have been expanded too far to protect dangerous [[criminal]]s.  This became a national controversy in the 1960s, as the [[Supreme Court]] interpreted these amendments broadly in favor of [[criminal]] defendants.

Many feel that these [[amendment]]s have been expanded too far to protect dangerous [[criminal]]s.  This became a national controversy in the 1960s, as the [[Supreme Court]] interpreted these [[amendment]]s broadly in favor of [[criminal]] [[defendant]]s.

Others, while no friends of real criminals, feel we need the protections to limit a [[government]] greedy for power.  [[Christianity]] is based on the unlawful execution of an innocent man, [[Jesus]].  He had no right to an [[attorney]] in [[Roman]] court.  The [[Greeks]], not the [[Roman]]s, allowed advocates or [[attorney]]s in [[trial]]s.   

Others, while no friends of real [[criminal]]s, feel we need the protections to limit a [[government]] greedy for [[power]].  [[Christianity]] is based on the unlawful execution of an innocent man, [[Jesus]].  He had no right to an [[attorney]] in [[Roman]] [[court]].  The [[Greeks]], not the [[Roman]]s, allowed advocates or [[attorney]]s in [[trial]]s.   

Many would rather see fifty guilty persons go free than to wrongly convict an innocent man.  What do you think?

Many would rather see fifty guilty persons go free than to wrongly convict an innocent man.  What do you think?

==[[Federalism]] & the [[Constitution]]==

==[[Federalism]] & the [[Constitution]]==

The [[Supremacy Clause]] may be the most important provision in the entire Constitution.  It is on page 328:  

The [[Supremacy Clause]] may be the most important provision in the entire [[Constitution]].  It is on page 328:  

:This [[Constitution]], and the Laws of the [[United States]] which shall be made in Pursuance thereof ... shall be the supreme [[Law]] of the Land ... any Thing in the [[Constitution]] or Laws of any State to the Contrary notwithstanding.

:This [[Constitution]], and the [[Law]]s of the [[United States]] which shall be made in Pursuance thereof ... shall be the supreme [[Law]] of the Land ... any Thing in the [[Constitution]] or [[Law]]s of any [[State]] to the Contrary notwithstanding.

U.S. Const. Art. VI.

[[Article 6|U.S. Const. Art. VI]].

What does it mean?  It means that [[Congress]] overrides every state law and state [[constitution]].  The federal [[government]] reigns supreme.  What it says, goes.

What does it mean?  It means that [[Congress]] overrides every [[state]] [[law]] and [[state]] [[constitution]].  The [[federal]] [[government]] reigns supreme.  What it says, goes.

In our history, states have sometimes defied congressional law.  [[James Madison]] and [[Thomas Jefferson]] themselves started the nullification doctrine, declaring that a state could nullify as unconstitutional an act of [[Congress]] (in their case, the Alien and [[Sedition Act]]s in 1798).  After all, what is a state to do if [[Congress]] and the [[Supreme Court]] team up against it?  In 1809, the [[Pennsylvania]] legislature ordered the state militia to prevent a federal marshal from serving a writ (order) that it felt was unconstitutional.  The federal officers simply arrested the state militia, but [[James Madison]] pardoned them.   

In our [[history]], [[state]]s have sometimes defied [[congress]]ional [[law]].  [[James Madison]] and [[Thomas Jefferson]] themselves started the [[nullification]] doctrine, declaring that a [[state]] could [[nullification|nullify]] as [[unconstitutional]] an act of [[Congress]] (in their [[case]], the [[Alien and Sedition Acts]] in 1798).  After all, what is a [[state]] to do if [[Congress]] and the [[Supreme Court]] team up against it?  In 1809, the [[Pennsylvania]] [[legislature]] ordered the [[state]] militia to prevent a [[federal]] [[marshal]] from serving a [[writ]] (order) that it felt was [[unconstitutional]].  The [[federal]] officers simply arrested the [[state]] militia, but [[James Madison]] pardoned them.   

Later, nullification doctrine led to the [[Civil War]] because it justified secession.  As recently as 1956, southern states invoked the doctrine to reject the [[Supreme Court]] ruling of [[Brown v. Board of Education]] (1954), which desegregated schools.  The federal [[government]] enforced that ruling over objections by southern states.

Later, [[nullification]] doctrine led to the [[Civil War]] because it justified secession.  As recently as 1956, southern [[state]]s invoked the doctrine to reject the [[Supreme Court]] ruling of [[Brown v. Board of Education]] (1954), which de[[segregation|segregated]] [[school]]s.  The [[federal]] [[government]] enforced that ruling over [[objection]]s by southern [[state]]s.

Some states, like [[West Virginia]], defer to federal law in their own state constitutions.  Article 1, Section 1 of the West Virginia Constitution provides:

Some [[state]]s, like [[West Virginia]], defer to [[federal]] [[law]] in their own [[state]] [[constitutions]].  Article 1, Section 1 of the [[West Virginia]] [[Constitution]] provides:

:The State of [[West Virginia]] is, and shall remain, one of the [[United States]] of [[America]].  The [[Constitution]] of the [[United States]] of [[America]], and the laws and treaties made in pursuance thereof shall be the supreme law of the land.

:The [[state]] of [[West Virginia]] is, and shall remain, one of the [[United States]] of [[America]].  The [[Constitution]] of the [[United States]] of [[America]], and the [[law]]s and treaties made in pursuance thereof shall be the supreme [[law]] of the land.

Perhaps you can think of why [[West Virginia]] expressly accepts federal supremacy.  (Answer: [[West Virginia]] was formed by splitting off from [[Virginia]] in order to join the Union during the [[Civil War]].  [[Virginia]] remained with the southern Confederacy.)

Perhaps you can think of why [[West Virginia]] expressly accepts [[federal]] supremacy.  (Answer: [[West Virginia]] was formed by splitting off from [[Virginia]] in order to join the [[Union]] during the [[Civil War]].  [[Virginia]] remained with the southern [[Confederate States of America|Confederacy]].)

Large states, like [[New York]], [[Virginia]] and [[Massachusetts]], were very reluctant to give away their power to the federal [[government]] by ratifying the [[Constitution]].  [[James Madison]] assured them that the “powers delegated by the proposed [[Constitution]] to the federal [[government]] are few and defined.  Those that are to remain in the State [[government]]s are numerous and indefinite.”  (Federalist No. 45)

Large [[state]]s, like [[New York]], [[Virginia]] and [[Massachusetts]], were very reluctant to give away their [[power]] to the [[federal]] [[government]] by ratifying the [[Constitution]].  [[James Madison]] assured them that the “[[power]]s [[delegate]]d by the proposed [[Constitution]] to the [[federal]] [[government]] are few and defined.  Those that are to remain in the [[state]] [[government]]s are numerous and indefinite.”  ([[Federalist No. 45]])

Madison’s assurance seemed true at the beginning, but over time the federal [[government]] seized more and more power for itself, as opponents of the [[Constitution]] had feared.

[[James Madison|Madison’s]] assurance seemed true at the beginning, but over time the [[federal]] [[government]] seized more and more [[power]] for itself, as opponents of the [[Constitution]] had feared.

==Key Decisions concerning Federalism==

==Key Decisions concerning [[Federalism]]==

The [[Supreme Court]] is part of the federal [[government]], and until recently it has consistently expanded federal power.  This is self-serving and predictable.  Many, unfortunately, like to seize more power for themselves.  Also, many [[judge]]s tend to enjoy exercising authority over others.

The [[Supreme Court]] is part of the [[federal]] [[government]], and until recently it has consistently expanded [[federal]] [[power]].  This is self-serving and predictable.  Many, unfortunately, like to seize more [[power]] for themselves.  Also, many [[judge]]s tend to enjoy exercising [[authority]] over others.

In ''[[Marbury v. Madison]]'' (1801), the [[Supreme Court]] grabbed the power to invalidate laws of [[Congress]] as un[[constitution]]al.  This is known as the principle of “[[judicial review]].”  It affects the relative power of the [[Supreme Court]] with respect to [[Congress]].  It does not affect [[federalism]], because the [[state]]s were not involved.

In ''[[Marbury v. Madison]]'' (1801), the [[Supreme Court]] grabbed the [[power]] to invalidate [[law]]s of [[Congress]] as un[[constitution]]al.  This is known as the principle of “[[judicial review]].”  It affects the relative [[power]] of the [[Supreme Court]] with respect to [[Congress]].  It does not affect [[federalism]], because the [[state]]s were not involved.

In ''[[McCulloch v. Maryland]]'' (1819), the [[Supreme Court]] decided a contest between the federal [[government]] and the state of [[Maryland]].  Guess which side the [[Supreme Court]] chose?  The federal [[government]], of course, because that is what the [[Supreme Court]] itself is.  It held that the [[Necessary and Proper Clause]] of the [[Constitution]] gives [[Congress]] broad powers.  The [[state]]s cannot interfere with a law passed by [[Congress]].  (In this case, [[Maryland]] tried to tax the national bank operating within its state.  The [[Court]] voided the tax.)

In ''[[McCulloch v. Maryland]]'' (1819), the [[Supreme Court]] decided a contest between the [[federal]] [[government]] and the [[state]] of [[Maryland]].  Guess which side the [[Supreme Court]] chose?  The [[federal]] [[government]], of course, because that is what the [[Supreme Court]] itself is.  It held that the [[Necessary and Proper Clause]] of the [[Constitution]] gives [[Congress]] broad [[power]]s.  The [[state]]s cannot interfere with a [[law]] passed by [[Congress]].  (In this [[case]], [[Maryland]] tried to [[tax]] the national [[bank]] operating within its [[state]].  The [[Court]] voided the [[tax]].)

The expansion of federal power continued in the courts for another 150 years.  Not until Justice [[William Rehnquist]] arrived to the [[Supreme Court]] did the tone start to change.  Here are some more examples:

The expansion of [[federal]] [[power]] continued in the [[court]]s for another 150 [[year]]s.  Not until [[Justice]] [[William Rehnquist]] arrived to the [[Supreme Court]] did the tone start to change.  Here are some more examples:

In ''[[Gibbons v. Ogden]]'' (1824), the [[Supreme Court]] interpreted the [[Commerce Clause]] to include virtually any business activity between two or more [[state]]s.  This greatly reduced the power of [[state]]s to regulate commerce.

In ''[[Gibbons v. Ogden]]'' (1824), the [[Supreme Court]] interpreted the [[Commerce Clause]] to include virtually any [[business]] activity between two or more [[state]]s.  This greatly reduced the [[power]] of [[state]]s to regulate [[commerce]].

Now, much legislation by [[Congress]] is justified based on the [[Commerce Clause]].  For example, civil rights legislation banning discrimination in places of public accommodation (e.g., hotels, [[restaurant]]s, [[train]]s, [[airplane]]s) is based in the [[Commerce Clause]].  This was upheld by [[Heart of Atlanta Motel v. United States]] (1964).  Since almost anything affects commerce, it is difficult to find many limits on federal power anymore.

Now, much [[legislation]] by [[Congress]] is justified based on the [[Commerce Clause]].  For example, [[civil]] [[rights]] [[legislation]] banning [[discrimination]] in places of public accommodation (e.g., hotels, [[restaurant]]s, [[train]]s, [[airplane]]s) is based in the [[Commerce Clause]].  This was upheld by [[Heart of Atlanta Motel v. United States]] (1964).  Since almost anything affects [[commerce]], it is difficult to find many limits on [[federal]] [[power]] anymore.

One limit that does still exist is in family law.  It remains outside the reach of the federal [[government]].  Education has also been beyond federal power, but President Bush’s [[No Child Left Behind]] has greatly expanded federal influence in this area.  Most types of crimes, including most murders, are still beyond federal power.  States alone can prosecute them, unless state lines were crossed during the commission of the crime.

One limit that does still exist is in [[family law]].  It remains outside the reach of the [[federal]] [[government]].  Education has also been beyond [[federal]] [[power]], but [[George W. Bush|President Bush’s]] [[No Child Left Behind]] has greatly expanded [[federal]] influence in this area.  Most types of crimes, including most [[murder]]s, are still beyond [[federal]] [[power]].  [[State]]s alone can [[prosecute]] them, unless [[state]] lines were crossed during the commission of the crime.

===Types of Federalism===

===Types of [[Federalism]]===

Let’s review various forms of national [[government]]:

Let’s review various forms of national [[government]]:

[[unitary system]]: national [[government]] has all the power.  Examples: [[England]], [[France]] and [[Italy]].

[[unitary system]]: national [[government]] has all the [[power]].  Examples: [[England]], [[France]] and [[Italy]].

[[co-federal system]]: states have all the power.  Examples: colonies under [[Articles of Confederation]].

[[co-federal system]]: states have all the [[power]].  Examples: [[colony|colonies]] under [[Articles of Confederation]].

In between these systems is the [[federalism]] unique to our [[Constitution]].  For legal, political and [[economic]] reasons, the system has changed over the years:

In between these systems is the [[federalism]] unique to our [[Constitution]].  For [[law|legal]], [[politics|political]] and [[economic]] [[reason]]s, the system has changed over the [[year]]s:

[[dual federalism]] (1788-1932): limited federal [[government]] no stronger than the states.  Each has its own separate authority.  Not much cooperation between the two.  Examples: federal [[government]] runs the mail routes, state [[government]] runs the police.

[[dual federalism]] (1788-1932): limited [[federal]] [[government]] no stronger than the [[state]]s.  Each has its own separate [[authority]].  Not much cooperation between the two.  Examples: [[federal]] [[government]] runs the mail routes, [[state]] [[government]] runs the [[police]].

[[cooperative federalism]] (1932-1965): responsibilities of federal and state [[government]] are mixed.  Exclusive state power erodes.

[[cooperative federalism]] (1932-1965): responsibilities of [[federal]] and [[state]] [[government]] are mixed.  Exclusive [[state]] [[power]] erodes.

[[centralized federalism]] (1965-1972): federal [[government]] asserts its power in cities, [[health care]], schools, etc., with large spending programs under President Johnson’s Great Society.  Also known as “[[creative federalism]].”

[[centralized federalism]] (1965-1972): [[federal]] [[government]] asserts its [[power]] in [[city|cities]], [[health care]], [[school]]s, etc., with large spending programs under [[Lyndon B. Johnson|President Johnson]]’s Great Society.  Also known as “[[creative federalism]].”

[[new federalism]] (1972-today): [[conservative]] movement to return power and money back to the states, away from the federal [[government]].

[[new federalism]] (1972-today): [[conservative]] movement to return [[power]] and [[money]] back to the [[state]]s, away from the [[federal]] [[government]].

Which do liberals prefer?  A strong federal [[government]].  Which do conservatives prefer?  A weak federal [[government]].

Which do [[liberal]]s prefer?  A strong [[federal]] [[government]].  Which do [[conservative]]s prefer?  A weak [[federal]] [[government]].

Here is a more difficult question: which do big companies prefer?  Think about it.  (Answer: Big companies want to avoid 50 different state regulations.  They tend to prefer a strong federal [[government]].  Hence big business creates another source of pressure for weakening state power further.)

Here is a more difficult [[question]]: which do big [[company|companies]] prefer?  Think about it.  (Answer: Big [[company|companies]] want to avoid 50 different [[state]] regulations.  They tend to prefer a strong [[federal]] [[government]].  Hence big [[business]] creates another source of pressure for weakening [[state]] [[power]] further.)

===Issues===

===Issues===

#Are laws against certain advertisements un[[constitution]]al?  

#Are [[law]]s against certain [[advertisement]]s unconstitutional?  

#*The federal [[government]] reserves the right to prohibit certain types of advertising, such as ads for harmful products like [[alcohol]] or [[cigarette]]s.  [[Tobacco]] companies voluntarily stopped television ads rather than wait until the federal [[government]] banned them.  The [[First Amendment]] says “[[Congress]] shall make no law ... abridging the freedom of speech.”  Should the federal [[government]] have the power to ban certain types of ads?

#*The [[federal]] [[government]] reserves the right to prohibit certain types of [[advertisement|advertising]], such as [[advertisement|ads]] for harmful products like [[alcohol]] or [[cigarette]]s.  [[Tobacco]] [[company|companies]] voluntarily stopped [[television]] [[advertisement|ads]] rather than wait until the [[federal]] [[government]] banned them.  The [[First Amendment]] says “[[Congress]] shall make no [[law]] ... abridging the [[freedom of speech]].”  Should the [[federal]] [[government]] have the [[power]] to ban certain types of [[advertisement|ads]]?

#free 50 guilty defendants rather than convict one innocent defendant?

#free 50 guilty [[defendant]]s rather than convict one innocent [[defendant]]?

#*The [[Bill of Rights]] contains many protections for criminal defendants.  Clearly, these rules will allow some guilty defendants to go free in order to minimize convictions of innocent persons.  Do you agree with this approach?

#*The [[Bill of Rights]] contains many protections for [[criminal]] [[defendant]]s.  Clearly, these rules will allow some guilty [[defendant]]s to go free in order to minimize convictions of innocent persons.  Do you agree with this approach?

#Is there a [[constitution]]al right for defendants to question potential jurors before trial?

#Is there a [[constitution]]al right for [[defendant]]s to question potential [[juror]]s before [[trial]]?

#*The selection of the [[jury]] is often the most important aspect of a criminal trial.  The [[Sixth Amendment]] guarantees an “impartial jury,” so questions are asked of potential jurors to identify bias for one side or the other.  A jury that favors [[government]] is what the prosecutor wants; a jury skeptical of [[government]] is what the defendant seeks.  How much freedom should the defendant have in asking questions of potential jurors before they are chosen for the trial?  This process is known as “[[voir dire]].”  In state court, defendants have much more leeway than in federal court, and the conviction rate is higher in federal court partly for this reason.  Should defendants have a right for their attorneys to question potential jurors during jury selection?

#*The selection of the [[jury]] is often the most important aspect of a [[criminal]] [[trial]].  The [[Sixth Amendment]] guarantees an “impartial jury,” so questions are asked of potential [[juror]]s to identify bias for one side or the other.  A jury that favors [[government]] is what the [[prosecutor]] wants; a [[jury]] skeptical of [[government]] is what the defendant seeks.  How much freedom should the [[defendant]] have in asking questions of potential [[juror]]s before they are chosen for the [[trial]]?  This process is known as “[[voir dire]].”  In [[state]] court, [[defendant]]s have much more leeway than in [[federal]] court, and the conviction rate is higher in [[federal]] [[court]] partly for this [[reason]].  Should [[defendant]]s have a [[rights|right]] for their [[attorney]]s to [[question]] potential [[juror]]s during [[jury]] selection?

#Does the [[Fourth Amendment]] prohibit drug testing of all public school students?

#Does the [[Fourth Amendment]] prohibit [[drugs|drug]] testing of all [[public school]] [[student]]s?

[[category:Homeschool Curriculum]]

[[category:Homeschool Curriculum]]